VIJAY SINGH Vs. STATE OF M P

JUDGEMENT

(1.) THE appellants have preferred this appeal against the judgment dated 8-7-2001, passed by learned XIV Additional Sessions Judge, Indore, in S. T. No. 389/2000, whereby convicting each of them for the offence punishable under section 302/34 of the IPC and sentenced them to suffer imprisonment for life with fine of Rs. 1,000/- each, and in default of payment of fine, each of them to undergo further RI of six months.

(2.) ACCORDING to the prosecution case as placed before the Trial Court is that on 10-10-2000, deceased Bablu @ Naresh was going with his brother hitendra Kumar (P. W. 6) on scooter by the area known as "somnath Ki Nai chal", towards his house. Deceased was driving Scooter No. MP 09-630 and his brother Hitendra was a pillion rider. When deceased and Hitendra reached near the house of appellant Vishnu Singh, the appellants were standing there and they stopped Naresh. Appellants asked as to how deceased came to their locality and started abusing in the name of mother. Deceased objected the abuse on which, appellants issued warning and appellant Vishnu Singh started assaulting the deceased by lathi and appellant Gajju @ Gajendra took out knife from his pocket and dealt blows whereas other two appellants caught hold of the deceased. Eye witness Hitendra Kumar (P. W. 6) raised alarm, which attracted two police personnel. The appellants after assaulting the deceased fled away from the scene of occurrence. Police took deceased Naresh in an auto-rickshaw to hospital. Witnesses Ajay Malviya (P. W. 16) and Anil Nayak (P. W. 11) also reached on the spot. Hitendra Kumar (P. W. 6) lodged the report (Exh. P-2) in the Police Station, which was recorded by Sub-Inspector Bhaiyalal Jat (P. W. 3 ). It is said that deceased Bablu @ Naresh abducted daughter of appellant Vishnu singh before one year and kept her for one or two days, thereafter, she was brought back by Vishnu Singh because of which, they were having inimical terms. Vishnu Singh did not lodge any report about abduction of her daughter. In the hospital, on examination by Doctor, deceased Bablu was declared dead. Shri Jat (P. W. 3) reached on the spot and prepared spot map (Exh. P-3 ). He also effected seizure of blood stained and control earth through seizure memo (Exh. P-4 ). Sub-Inspector P. S. Rajput (P. W. 13) completed the inquest inquiry and prepared report (Exh. P-16), thereafter, sent the dead body for post-mortem examination. Post-mortem of deceased was conducted by Dr. Ravindra choudhary (P. W. 7) and its report is Exh. P-5. Appellants were arrested and weapons were seized from their possession on their disclosure statement. Seized articles were sent to Forensic Science Laboratory and its report is Exh. P-20. On completion of investigation, appellants were charge-sheeted for commission of offence under Section 302/34 of the IPC.

(3.) LEARNED Counsel for the appellants has submitted that conviction of all the appellants under Section 302 of the IPC with the aid of Section 34 is not sustainable. According to the statement of solitary eye-witness Hitendra Kumar (P. W. 6), when they were going on scooter and reached near the house of appellant Vishnu Singh, appellants Vishnu Singh and Gajju @ Gajendra were standing outside the house and they stopped them. They started abusing in the name of mother, which was objected by deceased. At that juncture, appellants vijaysingh and Madhavsingh also came outside from the house on hearing abuse. Further say of witness Hitendra (P. W. 6) is that appellant Gajju @ gajendra started assaulting Bablu @ Naresh with a Chhoori (knife) and appellant Vishnu Singh with a lathi whereas appellants Vijaysingh and madhavsingh caught hold of deceased Naresh. Hitendra tried to save his brother but the appellants did not allow him, therefore, he started crying which was heard by two Police Constables. Witnesses Anil (P. W. 11) and Ajay Malviya (P. W. 16) also reached on the spot, who had also witnessed the incident.